The Independent reported at the end of last week that an “expert” linguist at controversial commercial linguistic analysis company SPRAKAB has lied about his qualifications and has a criminal conviction for smuggling drugs. It is rather questionable whether the “expert” testimony of such a person should be regarded as inherently reliable. The initial story was swiftly followed up with another reporting that the Home Office had quietly downgraded its use of SPRAKAB over the summer.

This story has prompted me to carry out a much delayed write up of the Supreme Court case of Secretary of State for Home Department v MN and KY (Scotland) [2014] UKSC 30.

SPRAKAB is well known to immigration lawyers and judges in the United Kingdom as its costly services have been much used by the Home Office since 2000. The identity of the “experts” it employs are unknown and it makes a profit by selling these “expert” services to governments to assist in the asylum determination process. Of 40,000 reports it was only known to have prepared one for a non governmental source (RB para. 5). It is thought that in the UK the reports overwhelmingly favour the party paying for the reports. It might also be thought that the profit making company behind the “expert” reports would cease to be employed by the paying party if the reports did not overwhelmingly favour that party. It might further be thought that a similar arrangement for evidence on behalf of claimants against the government would be given fairly short shrift by judges.

In the case of RB (Linguistic evidence Sprakab) Somalia [2010] UKUT 329 (IAC) Deputy President Ockelton warmly endorsed SPRAKAB’s approach and services:

It may that linguistic analysis of the kind used by Sprakab is a developing discipline and Sprakab will become subject to more peer review. It would certainly be in accordance with our understanding of Sprakab that it will constantly seek to refine and improve its methods. The evidence before us shows that Sprakab provides an honest, serious and useful guide to establishing the location where a person learned to speak.

This conclusion was reached having heard no evidence from other linguists, of whom there seem to be many, who are highly critical of SPRAKAB’s controversial methods. It is generally considered a bit difficult to peer review anonymous and unknown “experts”. You can read the astonished Free Movement write up here: Eliza Doolittle Exposed As Cockney Flower Girl Shocker.

The tribunal appeared to be applying a very different approach to evidence from a source paid for by government compared to its normal approach to sources paid for by claimants. Nevertheless, the determination was upheld by the Court of Appeal in RB (Somalia) v Secretary of State for the Home Department [2012] EWCA Civ 277.

The Supreme Court was rather less fulsome in its praise of SPRAKAB in the later case of Secretary of State for Home Department v MN and KY (Scotland) [2014] UKSC 30. Indeed, the tribunal determination in RB comes in for some fairly stern criticism as well, its guidance being described as “unduly prescriptive and potentially misleading”. Lord Carnwath also comments adversely on the opacity of the process by which RB came to be a “guidance” case in the tribunal and the failure to have regard to earlier judicial criticism of SPRAKAB (see paragraph 18).

The strongest criticism was of the tribunal’s suggestion that the “expert” evidence of SPRAKAB would effectively determine the ultimate issue in the appeal if expressed “in terms of certainty or near certainty”. Lord Carnwath observes that in RB the reports were inconsistent in the level of certainty expressed and goes on to say of an expert opinions that

What matters is not the confidence with which they are expressed, but the strength of the reasoning and expertise used to support them.

The tribunal’s conclusion was a rather surprising one, it must be said, given the jealously with which the immigration tribunal normally preserves its ultimate issue discretion when dealing with claimant experts. After all, Heydon J D and Ockelton M, writing in Evidence: Cases and Materials (Butterworths London 1996) at p384, describe

‘a general feeling that … expert witnesses are selected to prove a case and are often close to professional liars’

SPRAKAB was obviously considered by the tribunal to be an exception for some reason, but it is for the tribunal to evaluate all the evidence, not surrender its decision making functions to some unaccountable, private, profit making Home Office contractor.

The Supreme Court accepted that SPRAKAB reports were admissible and that the SPRAKAB “experts” could potentially remain anonymous:

[43] …This was not anonymous evidence in the ordinary sense. The evidence was advanced, and the expertise claimed, on behalf of an organisation, based on the collaborative work of individuals with different skills within it. There was no doubt about the identity of the organisation, its working methods or the qualifications and experience of those involved in preparing its report. The names of the individuals were available to the tribunal, and could have been made known to the parties if it became necessary to do so, for example to pursue a particular line of cross-examination. Subject to appropriate safeguards, and to satisfying themselves that in the circumstances of the particular case no prejudice was caused, the Upper Tribunal were entitled to determine that there was no objection in principle to the course adopted.

The problem highlighted by The Independent‘s report is that the parties in RB were not able to research a potential line of cross examination without knowing the identity of the “experts”.

In fact, if we return to the Supreme Court decision we can see that Lord Carnwath was also critical of the tribunal’s guidance to other judges that anonymity of SPRAKAB “experts” should normally be accepted and that it would require  “some very good reason” for a departure from granting anonymity. This guidance was said to be “unduly prescriptive on an issue which must depend on the circumstances of each case” as it had been based on Counsel’s concession in the particular circumstances of RB and should not be extended to other SPRAKAB reports as a matter of course.

On the facts of the particular case in MK and KY, the Supreme Court found that the particular “expert” at SPRAKAB, EA20, had gone “beyond the proper role of a witness” in commenting on credibility, was “wholly inappropriate” and that his opinion “reads as that of an advocate rather than an independent expert witness”.

MK and KY was treated by the Supreme Court almost as an appeal against RB. In fact it was an appeal from the judgment of Lord Eassie in the Scottish Court of Session Inner House case of M.AB.N. & Anor v The Advocate General for Scotland Representing The Secretary of State for the Home Department & Anor [2013] ScotCS CSIH_68. That judgment includes a great deal more detail on the particular SPRAKAB reports in question and mentions the qualification for SPRAKAB employee EA20 that is now disputed. The judgment also sets out devastating criticisms of the particular SPRAKAB reports concerned recorded by Lord MacPhail in an earlier stage of proceedings which were simply swept aside by the tribunal hearing MK and KY and which were never brought to the attention of the tribunal in RB or the Court of Appeal.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

Buy now